Durden v. State

290 S.W.3d 413, 2009 Tex. App. LEXIS 3341, 2009 WL 1347180

• Court: Court of Appeals of Texas
• Decided: May 15, 2009
• Docket: 06-08-00223-CR
• Status: Published

Opinions

OPINION

Opinion by

Justice CARTER.

In his version of the circumstances leading to his arrest, Lavern Tchefuncte Dur-den, a/k/a, Tchefuncte Durden, was taking a shortcut across a vacant lot on his way to mow the lawn at his church when he encountered a wheelbarrow filled with copper wire. Thinking that a friend of his would find a use for the wire, Durden testified that in an effort to assist a friend, he took possession of the wire-filled wheelbarrow and continued toward the church. Durden’s altruistic intentions were thwarted, however, when he encountered a Marshall police officer on his way.

The policeman disbelieved Durden’s story and arrested Durden, charging him with theft of the copper wire; Durden was convicted by a jury.

Durden now appeals, contending in a single point of error that the trial court erred by refusing to submit a mistake-of-fact instruction in the court’s written jury charge. We agree the trial court erred, but under the requisite standard of review we conclude Durden suffered no actual harm as a result of that error.

I. The Standard of Review for Alleged Jury Charge Error and the Relevant Penal Code Offense

Our review of the charge first requires us to determine whether there is error in the jury charge. If there is error, then we next determine “[i]f the error in the charge was the subject of a timely objection in the trial court....” Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh’g). If the appellant raised a timely objection in the trial court to the error, then the appellate court must reverse the trial court’s judgment if the error “is calculated to injure the rights of the defendant.” Tex.Code CRiM. Proc. Ann. art. 36.19 (Vernon 2006); Almanza, 686 S.W.2d at 171. This standard requires proof of no more than “some harm to the accused from the error.” Almanza, 686 S.W.2d at 171. If the appellant did not raise the error at trial, then the appellant can prevail “only if the error is so egregious and created such harm that he ‘has not had a fair and impartial trial’ — in short ‘egregious harm.’ ” Id. “In both situations the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Id.

Under our law, a person commits the offense of theft when that person “unlawfully appropriates property with intent to deprive the owner of property.” Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2008). That appropriation is unlawful if, among other things, “it is without the owner’s effective consent” or if “the property is stolen and the actor appropriates the property knowing it was stolen by another!.]” Tex. Penal Code Ann. § 31.03(b) (Vernon Supp. 2008).

Our law provides the following as one of many defenses to criminal responsibility:

(a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.

(b) Although an actor’s mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.

Tex. Penal Code Ann. § 8.02 (Vernon 2003). This mistake-of-faet defense “is applicable only if the actor’s mistake affects his culpable mental state regarding commission of the offense charged.” Egger v. State, 817 S.W.2d 183, 187 (Tex.App.-El Paso 1991, pet. ref'd) (citing Willis v. State, 790 S.W.2d 307, 314 (Tex.Crim.App.1990)).

“[A]n accused has the right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the defense.” Hamel v. State, 916 S.W.2d 491, 493 (Tex.Crim.App.1996); see also Allen v. State, 253 S.W.3d 260, 266 (Tex.Crim.App.2008); Hayes v. State, 728 S.W.2d 804, 807 (Tex.Crim.App.1987); Sands v. State, 64 S.W.3d 488, 494 (Tex.App.-Texarkana 2001, no pet.); Pennington v. State, 54 S.W.3d 852, 856 (Tex.App.-Fort Worth 2001, pet. ref'd). The rule is designed to ensure that the jury, not the judge, will decide the relative credibility of the evidence. Sands, 64 S.W.3d at 494. “To be entitled to a defensive instruction, the defensive issue raised by the evidence must be an issue that both is established by the penal code and is applicable to the charged offense.” Willis, 790 S.W.2d at 314-15 (Tex.Crim.App.1990). The defendant’s testimony may be, by itself, enough to warrant the issuance of a requested defensive instruction. Hayes, 728 S.W.2d at 807.

In assessing whether the trial court erred by denying a requested defensive instruction (such as one on mistake of fact), an appellate court must examine the evidence offered in support of that defensive issue in the light most favorable to the defense. Almanza, 686 S.W.2d at 171; Pennington, 54 S.W.3d at 856. “Even when the defendant does not testify, there may be enough evidence to warrant a charge on a defensive issue.” Pennington, 54 S.W.3d at 856 (citing Smith v. State, 676 S.W.2d 584, 585, 587 (Tex.Crim.App.1984)). “When evidence from any source raises a defensive issue, and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury.” Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.1993) (emphasis added).

II. The Evidence and the Trial Court’s Ruling on Durden’s Requested Mistake-of-Fact Instruction

Durden testified in his own defense. As related above, Durden told the jury that he was on his way to mow the grass at Galilee Baptist Church on St. Patrick’s Day 2008. The path he traveled between his home and the church was one he walked almost every morning. Part of that path took him through a trail amidst a field.

On the day in question, Durden was traveling along that trail when he came across a wheelbarrow filled with what Dur-den said he thought was abandoned, junk copper wire, something which had not been there on his previous walks along the trail.¹ Durden stated he then decided to take the wheelbarrow (along with its contents) and began pushing the wheelbarrow further down the pathway. Soon thereafter, Durden was seen by a police officer. Durden, according to his continuing testimony, pushed the wheelbarrow toward the officer. Durden and the officer had a discussion, during which Durden told the officer about finding the wheelbarrow and its contents. The officer, however, believed Durden had stolen the wire and arrested him for theft.

On cross-examination, Durden repeatedly denied taking the wire with intent to sell it for a profit. Rather, Durden testified, it was his intention to give the wire to a local tree surveyor, who commonly used similar copper wire in his tree surveying business. Durden was nevertheless forced to admit that the field on which the wheelbarrow filled with wire had been located was not land belonging to Durden; instead, that field was owned by a man whom Durden knew to be also a member of his church, a man he called Deacon Yancey.

At the conclusion of the evidence and before the parties presented closing arguments, Durden requested a jury instruction on mistake of fact:

DURDEN: Judge, on mistake of fact, we would just request an instruction in regards to that.

As the Penal Code shows, that it is a defense to prosecution that the act, through mistake, formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.!

[2]

My argument is, Judge, that he testified that he did not take the copper from Paul Davis, that he found it, apparently, abandoned, and in his mind, thought it was abandoned and that he just moved it a short distance thinking it was abandoned.

And because of that, we would request mistake of fact.

The trial court denied the request, commenting,

THE COURT: All right. To me, that’s an inferential rebuttal. I mean, they’re either going to believe him or the other evidence.

So that request is denied.

Bring the jury in.

This statement by the trial court suggests that although she agreed there was some evidence that (if believed by a jury) would negate the culpable mental state of the charged crime, the trial court further believed that this mistake-of-fact question would be resolved by the jury during the normal process of weighing the conflicting evidence. In other words, since the jury was instructed that “A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of the property,” it would necessarily have to disbelieve Durden’s claim of mistake of fact before the jury could determine he had an intent to deprive. Thus, the trial court seems to have believed that submitting a mistake-of-fact instruction would have been merely an unnecessary or redundant gesture.³ Based on that apparent conclusion, the trial court denied Durden’s request.

III. Other Appellate Mistake-of-Fact Instruction Cases

In Willis v. State, the Texas Court of Criminal Appeals discussed a hypothetical situation in which a defendant testified that he believed certain items he had purchased were items that had been honestly obtained by a seller of used items. In such a situation, wrote the court, the defendant’s testimony serves to “negate an element of the offense of theft of receiving property stolen by another (i.e., that he obtained the items knowing they were stolen).” Such evidence does not negate the entire charged crime “(for he may still possess the items)”; instead, the accused “creates an issue of mistaken belief as to only the culpable mental state element of theft. In such circumstances, the defendant would be entitled to a defensive instruction of ‘mistake of fact....’” 790 S.W.2d at 314.

In Sands, this Court agreed with the appellant’s contention that the trial court erred by failing to give a mistake-of-fact jury instruction. We reached this conclusion after a concise discussion of several of the Texas Court of Criminal Appeals’ then-recent decisions regarding the entitlement of defendants to receive such instructions, and each of those cases reached the conclusion that the trial courts had erred by not giving the requested instruction. We further wrote,

Thus, in accordance with the decisions from the Court of Criminal Appeals and the statute being interpreted, an instruction on the mistake-of-fact defense should be given when evidence raising the issue of whether the actor formed a reasonable belief about a matter of fact, if his mistaken belief negated the kind of culpability required for the commission of the offense. Even if this instruction is repetitive to the required proof that the jury find beyond a reasonable doubt that Sands intentionally and knowingly committed this required element of the crime, this statute as interpreted by the Court of Criminal Appeals requires that such an instruction be given to the jury.

64 S.W.3d at 495.

In Bang v. State, the Thirteenth Court of Appeals held the appellant had been erroneously denied a mistake-of-fact instruction “because appellant claimed not to know that by his conduct he was participating in a burglary. When an accused creates an issue of mistaken belief as to the culpable mental element of the offense, he is entitled to a defensive instruction on ‘mistake of fact.’ ” 815 S.W.2d 838, 842 (Tex.App.-Corpus Christi 1991, no pet.) (citing Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App.1991); and referencing Hill v. State, 765 S.W.2d 794, 796-97 (Tex.Crim.App.1989)).

IV. The State’s Argument

The State contends Durden’s mistake was one of law, not one of fact. The State frames its argument on appeal by suggesting that Durden’s only mistake in this case was “that he was indifferent as to who that owner [of the wire] may be.... ” This indifference, according to the State, regarded proper ownership, which the State asserts is purely a question of law.

The State’s argument attempts to frame the issue now before us in terms of the consequences that extend from what it characterizes as Durden’s mistake of law. The State’s thesis, however, overlooks whether Durden’s testimony of mistake could have been interpreted by the jury as presenting a fact that would negate the accused’s culpable mental state. We believe it is this latter framework that is required by Almanza. It does not matter that we on appeal might hypothetically reinterpret the evidence as suggesting that the accused was mistaken in his interpretation of the law; the review standard instead requires us only to inquire whether there is any evidence — when viewed in the light most favorable to the defense — offering support to the view that due to the appellant’s claimed factual mistake, the appellant lacked the requisite culpable mental state to commit the alleged crime. This latter framework is also consistent with our opinion in Sands, as well as the other caselaw discussed above.

Y. Was There Evidence To Support Issuing the Instruction?

There was some evidence in this case that suggests Durden made a mistake of fact. Durden’s own testimony (i.e., that he found the wire abandoned inside a wheelbarrow along a trail that he walked almost every day) is at least some evidence that if believed by the jury, would negate that element of the theft charge regarding the accused’s intent to deprive the rightful owner of the property with possession of the property. Durden’s testimony amounts to some evidence that he believed the copper wire to have been abandoned property, which (if believed) would support a jury finding that Durden lacked the intent to deprive the true owner of such property.

Under Willis, and consistent with our previous analysis in Sands, we conclude the applicable law and the testimonial evidence required promulgating Durden’s requested defensive instruction on mistake of fact. The fact that the mistake-of-fact instruction requested by Durden might be viewed as repetitive to the required proof that the jury find Durden intentionally or knowingly committed the charged crime does not obviate the trial court’s statutory duty to include that properly requested instruction. Cf. Sands, 64 S.W.3d at 495. Nor does the view that Durden’s testimony might have been seen by the trial court or the jury as feeble, contradicted, impeached, or incredible undermine Durden’s entitlement to a defensive instruction. Cf. Pennington, 54 S.W.3d at 858. The trial court erred.

VI. Harm Analysis

Having concluded that Durden was entitled to a mistake-of-fact instruction, in order to correctly apply the proper standard of review we must next determine whether the error in the charge was the subject of a timely objection in the trial court. Almanza, 686 S.W.2d at 171. The appellate record answers that question in the affirmative. Accordingly, the jury charge error must be evaluated to determine whether the trial court’s error was “calculated to injure the rights of the defendant.” Tex.Code CRIM. Proc. Ann. art. 36.19; Almanza, 686 S.W.2d at 171. That determination will, however, hinge on our assay of the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant factors. See Tex.Code Crim. Prog. Ann. art. 36.19; Almanza, 686 S.W.2d at 171.

A reasonable summation of the State’s case suggests Durden was literally “caught in the act” of stealing the wire. The State also had quite a bit of evidence that cast doubt on the veracity of Durden’s version of events. Durden was found with a flashlight in his back pocket. This fact was important, because the wire had been stolen from Davis’ business during the night and because Durden admitted it was daylight when he claimed to have found the wire. As the State pointed out in its closing argument, one does not normally need a flashlight during the daytime if he or she is heading to mow the church’s lawn. One observes that since Durden walked the path where he said that the wheelbarrow was located and had not encountered it before, if the copper had been abandoned, it had not been very long abandoned. Durden had admittedly been previously convicted of theft.⁴ There was disagreement among the witnesses regarding whether Durden actually walked toward the police officer on the morning in question or whether Durden instead changed his direction of travel once he caught sight of the officer. The officer’s version, if believed, suggests that Durden had evidenced guilt by trying to evade contact with the officer that morning. See, e.g., Figueroa v. State, 250 S.W.3d 490, 503 (Tex.App.-Austin 2008 pet. ref'd), cert. denied, - U.S. -, 129 S.Ct. 1340, 173 L.Ed.2d 609 (2009) (appellant’s attempt to flee before his arrest was fact from which jury could have inferred consciousness of guilt). Davis testified that Durden had worked for him until the Fall of 2007. Davis testified he noticed markings indicating the wire was dragged under his fence.

Both the State and Durden’s trial counsel spent substantial portions of their respective closing arguments addressing whether Durden’s version of events was reasonable and whether it supported the conclusion that Durden lacked the requisite intent to steal property. At trial, there was never any question whether Durden was in possession of the purloined copper; rather, the only truly disputed issue was his state of mind while taking the wire into his possession and keeping it under his control. In fact, the issue of Durden’s intent was arguably the sole contested issue during the entire trial.

The duty to conduct a harm analysis lies solely on the shoulders of a reviewing court; the burden is not on the parties to demonstrate it. Warner v. State, 245 S.W.3d 458, 463-64 (Tex.Crim.App.2008); Johnson v. State, 43 S.W.3d 1, 4-6 (Tex.Crim.App.2001). The question that arises here in the context of Almanza when there is preserved charging error is, “What is meant by ‘some harm?’ ” That question has been answered.

We now expressly find that, in the context of Almanza, supra, and Article 36.19, supra, the presence of any harm, regardless of degree, which results from preserved charging error, is sufficient to require a reversal of the conviction. Cases involving preserved charging error will be affirmed only if no harm has occurred. See id. at 171 (“In other words, an error which has been properly preserved by objection will call for reversal as long as the error is not harmless.”).

Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986). The harm must be actual and not just theoretical. Almanza, 686 S.W.2d at 174.

Our review of the contested and uncontested evidence (including the varying weights of such evidence) discussed above, the entire jury charge (which included the requirement that the jury conclude Dur-den intentionally or knowingly committed the charged crime), the jury arguments for both sides, and the parties’ briefs on appeal lead us to conclude Durden suffered no actual harm as a result of the trial court’s error in denying Durden’s mistake-of-fact jury instruction. As we observed in Sands, the record here reveals — at best— theoretical harm, but it does not reveal evidence of the actual harm required by Almanza and Arline. We find no reason to abandon the analysis and precedent established by this Court in Sands.

In Sands, we analyzed a factual situation and found the trial court erred in failing to submit a mistake-of-fact instruction, but such error was not harmful. We stated:

In the present case, the jury came face-to-face with making a decision of whether Sands intentionally and knowingly possessed methamphetamine. This puts squarely in point the question of whether Sands mistakenly believed that the contents of the syringe contained vitamins or he intentionally and knowingly possessed methamphetamine. In this situation, Sands was not denied the right to have the jury consider the defense that he raised concerning a mistake-of-fact defense. Therefore, we find that the failure to submit the requested instruction on mistake of fact was not harmful error.

Sands, 64 S.W.3dat496.

Likewise, here, the jury was instructed that in order to find Durden guilty, it must find that Durden appropriated property “with the intent to deprive the owner of the property....” As in Sands, this requirement allowed the jury to consider whether Durden mistakenly believed that the copper wire was abandoned or he took the property with the intention of depriving the owner of that property. Durden had his day in court. The jury heard Durden testify. His attorney cross-examined the State’s witnesses and presented a vigorous closing argument. Ultimately, the jury disbelieved Durden’s testimony that he lacked the specific intent to commit this theft.

While in some instances the denial of a proper defensive instruction would cause harm by preventing the defendant from arguing an issue, i.e., self-defense, here, Durden fully argued that he thought the wire was abandoned and that he had no intent to deprive the owner of the property (“did the state prove beyond a reasonable doubt that he took these wires from Paul Davis with the intent to deprive him of his property. That’s what you have to decide.”). While the trial court did err by denying the mistake-of-fact instruction, the jury’s verdict inferentially resolved the issue that would have otherwise been required via the requested instruction. It would require us to resort to mere conjecture to conclude, on this evidentiary record, that Durden suffered any actual harm. The standard of review to assess jury charge error requires, however, more than mere conjecture. We conclude Durden suffered no actual harm as a result of the trial court’s error.

We affirm the trial court’s judgment.

Dissenting Opinion by Justice MOSELEY.

1 . A police officer had earlier testified that law enforcement officials believed this wire had been stolen from Paul Davis. Davis confirmed that some wire was missing from his place of business at 612 Higgins Street. Dur-den had been an employee of Davis until the Fall of 2007. Durden denied stealing the wire from Davis and repeatedly insisted he found the wire along the trail. Durden testified that he daily walked up Higgins Street to get to the trail.

2. This is an accurate description of the content of the mistake-of-fact defense as it would apply in this case. Tex. Penal Code Ann. § 8.02(a).

3 . In this belief, the trial court was allied with Chief Justice Cornelius, who expressed the same view in a concurring opinion in Sands. Sands, 64 S.W.3d at 497.

4 . Durden admitted on direct examination that he had been previously convicted of “buying stolen property” in cause number 06-0183X, in which he received a six-month sentence. See TexR. Evid. 607, 609.